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2020 MarsdenLR 2565
HIGH COURT MALAYA KUALA LUMPUR
RHB INSURANCE BERHAD – Appellant
Versus
SYAHRUL SYAMSUAR & ORS – Respondent
[Suit No: WA-22NCC-169-04/2019]
An employee traveling in a company vehicle for work can claim insurance coverage as a passenger, despite not being engaged in work duties at the time of injury.
Headnote:(A) Road Transport Act 1987 – Section 96(3) – Insurance Policy – Liability to third parties – Declarations sought regarding indemnity coverage of the 3rd Defendant injured while travelling as a passenger in the Motor Lorry driven by the 1st Defendant – The court found that the 3rd Defendant was: (1) not in the course of employment at the time of the accident, (2) a passenger carried by reason of his contract of employment. (Paras 25, 50, 67)
(B) Insurance Exceptions – Applicability of Exceptions (b) and (c) under insurance policy – Determined that liability under Exception (c) covered the 3rd Defendant despite not expressly being required by employer to travel in Motor Lorry – Ambiguities in insurance contracts resolved against insurer. (Paras 27, 48, 62)
Facts of the case: Road accident involving a motor lorry resulting in severe injuries to the 3rd Defendant, who was travelling as a passenger for employment-related purposes. (Paras 2, 3, 4)
Findings of Court: Plaintiff's action seeking declarations that it was not liable under the insurance policy was dismissed. (Paras 67)
Issues: Whether the 3rd Defendant was excluded under the insurance policy's Exceptions due to being an employee and the scope of coverage. (Paras 25, 58)
Ratio Decidendi: The court reasoned that the 3rd Defendant, authorized by his employer, was effectively a passenger under the contract of employment exemption despite not performing duties during travel. (Paras 61, 66)
Result: Plaintiff’s action dismissed with costs to 3rd Defendant. (Paras 67)
JUDGMENT
[1] This case concerns what was, in substance, an application by the Plaintiff insurance company for declarations relating to the validity or enforceability of an insurance policy under s 96(3) of the Road Transport Act 1987 .
The Road Accident
[2] The facts of this case were prosaic and much of which were not disputed. This, however, is not in any way to belittle the fact that the outcome of the road accident in question was nonetheless tragic for the 3rd Defendant.
[3] At around 6 am. on the 10th of December 2016, a motor lorry with registration number WYF 3784 ("Motor Lorry") driven by the 1st Defendant was involved in an accident along the North-South Highway. The Motor Lorry went off the road and collided with a tree. As a result, the 3rd Defendant, who was in the Motor Lorry, suffered severe injuries including fractures to his tibia and fibula, his left hip was dislocated and both his feet were crushed.
[4] On the day of the accident, the 3rd Defendant had to be in Penang to inspect live fish stocks that had been ordered by the 2nd Defendant. According to the 3rd Defendant he took a lift in the Motor Lorry as it was also heading to Penang, and he was authorised to do so. The 3rd Defendant was, however, not obliged to travel by the Motor Lorry. He could have travelled to Penang by any other means and would have been able to claim the expense for such travel.
[5] The journey towards Penang on 10th of December 2016 started from the factory of the 2nd Defendant in Selangor, where the 3rd Defendant had met up with the 1st Defendant at about 3 am. that morning.
[6] The Motor Lorry was owned by the 2nd Defendant. Both the 1st Defendant and the 3rd Defendant were employees of the 2nd Defendant. The 1st Defendant was authorised to drive the Motor Lorry by the 2nd Defendant.
[7] That the 3rd Defendant was authorised to take a lift in the Motor Lorry was confirmed by the testimony of one Mr Koh Soon Teck ("DW1"). DW1 testified on behalf of the 2nd Defendant.
[8] As regards his employment, the 3rd Defendant was given a letter of appointment by the 2nd Defendant dated 16 September 2012 with the commencement date of his employment stated as being on the 1st of October 2012.
[9] The 3rd Defendant was first employed as an Assistant Supervisor and was on probation for three months. His working hours were stated in his letter of appointment as between 9 am. to 6 pm. on Mondays to Saturdays, subject to changes that might be set by the management. On 1 January 2013 the 3rd Defendant was confirmed as an Assistant Supervisor and, subsequently, on the 19th of September 2015, he was promoted to a Supervisor.
[10] As Supervisor, the 3rd Defendant's scope of work was to place orders on behalf of the 2nd Defendant for live and frozen fish with suppliers and to inspect the orders placed.
[11] In the 3rd Defendant's letters of appointment, confirmation and promotion, DW1 had signed off on behalf of the 2nd Defendant as "Director".
The Insurance Policy
[12] In respect of the Motor Lorry, the 2nd Defendant had taken out, and renewed, a Commercial Vehicle Policy with the Plaintiff. The policy number was D15MCVC8783046KL and it was for the period of cover from 17 March 2016 to 16 March 2017 ("Insurance Policy"). The 2nd Defendant was the Insured and the accident had occurred within the period of cover of the Insurance Policy.
[13] In relation to the Insurance Policy, additional cover for "Breakage of Glass in Windscreen Window or Sunroof" was taken by the 2nd Defendant.
[14] It was not disputed that the 2nd Defendant did not take additional cover for what was termed as "passenger risk".
[15] The Insurance Policy taken out extended to authorised drivers namely "Persons or Classes of Persons entitled to drive. Any person who is driving on the Policyholder's order or with their permission."
[16] In respect of liability to third parties, the Insurance Policy stated under Section B thereof as follows:
"SECTION B: LIABILITY TO THIRD PARTIES
1. We
